SEPARATION, TRANSITION AND GENERAL RELEASE AGREEMENT
Exhibit 10.1
SEPARATION, TRANSITION AND GENERAL RELEASE AGREEMENT
This Separation, Transition and General Release Agreement (this “Separation Agreement”), is
entered into this 31st day of July, 2007 (the “Effective Date”), by and between Xxxxxxx X. Xxxxxxxx
(“Xxxxxxxx”) on the one hand, and Western Digital Corporation (“WDC”), on behalf of itself and all
other corporations or other entities a majority of whose outstanding voting stock or voting power
is beneficially owned directly or indirectly by WDC (each, a “WDC Subsidiary”), on the other hand.
WDC and all WDC Subsidiaries are referred to collectively herein as “Western Digital.”
WHEREAS, Xxxxxxxx has been employed as Senior Vice President and Chief Financial Officer of
WDC; and
WHEREAS, Xxxxxxxx and Western Digital have mutually agreed to terminate Xxxxxxxx’x employment
relationship with Western Digital upon the terms set forth herein.
NOW, THEREFORE, in consideration of the covenants undertaken and the releases contained in
this Separation Agreement, Xxxxxxxx and Western Digital agree as follows:
I. Separation. Xxxxxxxx and Western Digital hereby agree that Xxxxxxxx’x employment
with Western Digital and his service as Senior Vice President and Chief Financial Officer of
Western Digital, or in any other capacity for Western Digital, shall terminate no later than August
31, 2007 (the “Outside Termination Date”). Between the Effective Date and the Outside Termination
Date, (i) Xxxxxxxx may resign his employment with Western Digital, (ii) Western Digital may release
Xxxxxxxx from further duty without Cause as defined in Section 3.3 of the Western Digital
Corporation Executive Severance Plan (the “Executive Severance Plan”), or (iii) Western Digital may
terminate Xxxxxxxx’x employment for Cause as defined in Section 3.3 of the Executive Severance
Plan. The specific date on which Xxxxxxxx’x employment is terminated under the provisions of this
Section I shall be referred to herein as the “Separation Date.”
II. Transition Services and Compensation.
A. Transition Services. From and after the Effective Date through the
Separation Date (the “Transition Period”), Xxxxxxxx shall continue to perform his usual and
customary duties as Senior Vice President and Chief Financial Officer and shall perform such
other tasks and duties as requested by the Chief Executive Officer in order to transition the
Chief Financial Officer role to Xxxxxxxx’x successor (the “Transition Services”).
B. Transition Services Compensation. During the Transition Period, Xxxxxxxx
shall (i) continue to receive the salary in effect as of the Effective Date, and (ii) be
eligible for bonus compensation under the WDC Incentive Compensation Plan (the “ICP”) as set
forth in Section III(B) below.
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C. Benefits. During the Transition Period, Xxxxxxxx shall be eligible to
receive employee health and welfare benefits accorded to employees generally and other
executives in comparable pay grades. If, during the Transition Period, any such benefits are
discontinued or adjustments are made to benefits of employees generally, then such
discontinuation of or adjustments to benefits will apply equally to the benefits provided to
Xxxxxxxx hereunder.
D. Vacation. Xxxxxxxx will continue to accrue vacation during the Transition
Period in accordance with Western Digital’s vacation accrual policies. All accrued and
unused vacation earned prior to the Separation Date will be paid to Xxxxxxxx on or before the
Separation Date.
III. Severance Benefits Upon Resignation. In the event that either (i) Xxxxxxxx
resigns from employment with Western Digital prior to the Outside Termination Date, or (ii)
Xxxxxxxx’x employment is terminated by Western Digital other than for Cause prior to the Outside
Termination Date (as defined in the Executive Severance Plan), and provided that Xxxxxxxx fully
complies with all requirements under this Separation Agreement, Xxxxxxxx shall be entitled to
receive the benefits set forth below, in lieu of and not in addition to any benefits under any
severance plan sponsored by Western Digital. Xxxxxxxx understands and agrees that it is an express
condition of the payment of any severance benefits under this Section III, that he execute,
deliver, and not revoke a general release in the form attached hereto as Exhibit X.
X. Xxxxxxxxx Pay. Western Digital shall pay Xxxxxxxx a lump sum payment of Nine
Hundred Thousand Dollars and No Cents ($900,000.00), less standard withholding and authorized
deductions. Such payment will be made within thirty (30) days after the Separation Date,
provided that Xxxxxxxx has signed, delivered and not revoked a general release in the form
attached as Exhibit A.
B. ICP Bonus. For the bonus cycle ending June 29, 2007, Xxxxxxxx shall receive
his full bonus under the ICP, at the level actually funded by Western Digital with respect to
the ICP, but in no event shall such bonus be less than 100% of the performance target. This
payment shall be made at the same time payments are made to peer employees under the ICP. In
addition, Xxxxxxxx shall receive a payment equal to a pro-rata portion of Xxxxxxxx’x bonus
opportunity under the ICP for the bonus cycle in which the Separation Date occurs, with such
pro-rata portion based on the number of days in the applicable bonus cycle during which
Xxxxxxxx was employed and assuming 100% of the performance targets are met regardless of the
actual funding by Western Digital. This payment shall be paid in one lump-sum payment within
thirty (30) days after the Separation Date, provided that Xxxxxxxx has signed, delivered and
not revoked a general release in the form attached as Exhibit A.
C. Options. During the Transition Period, Xxxxxxxx’x stock options shall
continue to vest in accordance with their terms and conditions. On the Separation Date,
Xxxxxxxx’x then outstanding stock options will vest and become exercisable as if Xxxxxxxx had
remained employed with Western Digital through February 29, 2008. Notwithstanding anything
to the contrary herein, the exercisability of Xxxxxxxx’x
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outstanding stock options shall continue to be governed by the stock incentive plan and
stock option agreement applicable to such options.
D. Restricted Stock. During the Transition Period, Xxxxxxxx’x unvested shares
of restricted stock shall continue to vest in accordance with their terms and conditions. On
the Separation Date, Xxxxxxxx’x then unvested shares of restricted stock will vest as if
Xxxxxxxx had remained employed with Western Digital through February 29, 2008.
E. Benefit Continuation. Provided Xxxxxxxx timely elects COBRA continuation of
his medical, dental, and/or vision coverage existing as of the Separation Date, Western
Digital shall pay to Xxxxxxxx a lump sum payment equal to the applicable COBRA premium
payments for such coverage for a period of eighteen (18) months, less standard withholding
and authorized deductions.
F. Executive Outplacement. Western Digital shall pay for Xxxxxxxx to receive
outplacement services provided by a vendor chosen by Western Digital for a period of up to
twelve (12) months following the Separation Date, subject to a maximum cost to Western
Digital of $15,000.
IV. Additional Cash Severance. In the event that Xxxxxxxx performs his usual and
customary duties as Chief Financial Officer with respect to the filing of Western Digital’s Form
10-K with respect to the fiscal year ending June 29, 2007, does not resign prior to the Outside
Termination Date, and is not terminated for Cause (as defined in the Executive Severance Plan) by
Western Digital prior to the Outside Termination Date, Xxxxxxxx, in lieu of and not in addition to
any compensation and benefits under any severance plan sponsored by Western Digital, shall be
entitled to receive, in addition to the benefits set forth in Section III(A)-(F) above, additional
lump sum cash severance in the amount of $500,000, less standard withholding and authorized
deductions. Such payment shall be made within thirty (30) days after the Separation Date, provided
that Xxxxxxxx has signed, delivered and not revoked a general release in the form attached as
Exhibit A.
V. Confidential Information.
A. Confidential Material. Xxxxxxxx, in the performance of Xxxxxxxx’x services
on behalf of Western Digital, has had access to, received and been entrusted with
confidential information, including but in no way limited to development, marketing,
organizational, financial, management, administrative, production, distribution and sales
information, data, specifications and processes presently owned or at any time in the future
developed by Western Digital or its agents or consultants, or used presently or at any time
in the future in the course of its business that is not otherwise part of the public domain
(collectively, the “Confidential Material”). All such Confidential Material is considered
secret and was made available to Xxxxxxxx in confidence. Xxxxxxxx represents that he has
held all such information confidential and will continue to do so.
B. Use and Return of Confidential Material. Xxxxxxxx shall not, directly or
indirectly for any reason whatsoever, disclose or use any such Confidential
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Material except in the course and scope of his employment with Western Digital, unless
such Confidential Material ceases (through no fault of Xxxxxxxx’x) to be confidential because
it has become part of the public domain or he is otherwise obligated to disclose such
information by the lawful order of any competent jurisdiction. All records, files, drawings,
documents, equipment and other tangible items, wherever located, relating in any way to the
Confidential Material or otherwise to the business of Western Digital which Xxxxxxxx
prepares, uses or encounters, shall be and remain the sole and exclusive property of Western
Digital and shall be included in the Confidential Material. On or before the Separation
Date, Xxxxxxxx shall promptly deliver to Western Digital any and all of the Confidential
Material, not previously delivered to Western Digital, which may be or at any previous time
has been in Xxxxxxxx’x possession or under Xxxxxxxx’x control.
C. Unfair Competition. Xxxxxxxx hereby acknowledges that the sale or
unauthorized use or disclosure of any of the Confidential Material by any means whatsoever
shall constitute “Unfair Competition.” Xxxxxxxx agrees that Xxxxxxxx shall not engage in
Unfair Competition at any time.
VI. Proprietary Information. At all times in the future, Xxxxxxxx shall remain bound
by the provisions of that certain Employee Invention and Confidentiality Agreement (“Invention
Agreement”) signed by Xxxxxxxx on September 23, 2002, a copy of which is attached hereto as
Exhibit B.
VII. Return of Company Property. On or before the Separation Date, Xxxxxxxx shall
return all Western Digital property in his possession to Western Digital, including, but not
limited, to any keys, computers, cell phones or personal data assistants. Xxxxxxxx may transfer to
his personal cellular telephone plan the cellular telephone number that he was assigned and has
been using as a Western Digital employee.
VIII. Non-Disparagement. Xxxxxxxx agrees that he shall not (1) directly or
indirectly, make or ratify any statement, public or private, oral or written, to any person that
disparages, either professionally or personally, Western Digital, as well as its trustees,
directors, officers, members, managers, partners, agents, attorneys, insurers, employees,
stockholders, representatives, assigns, and successors, past and present, and each of them, or (2)
make any statement or engage in any conduct that has the purpose or effect of disrupting the
business of Western Digital. Nothing herein shall in any way prohibit Xxxxxxxx from disclosing
such information as may be required by law, or by judicial or administrative process or order or
the rules of any securities exchange or similar self-regulatory organization applicable to
Xxxxxxxx.
IX. Soliciting Employees. Xxxxxxxx promises and agrees that he will not, during the
Transition Period and for a period of one year following the Separation Date, directly or
indirectly solicit any employee of Western Digital to work for any business, individual,
partnership, firm, or corporation.
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X. Miscellaneous.
A. Successors.
1. This Separation Agreement is personal to Xxxxxxxx and shall not, without the prior
written consent of Western Digital, be assignable by Xxxxxxxx.
2. This Separation Agreement shall inure to the benefit of and be binding upon Western
Digital and its respective successors and assigns and any such successor or assignee shall
be deemed substituted for Western Digital under the terms of this Separation Agreement for
all purposes. As used herein, “successor” and “assignee” shall include any person, firm,
corporation or other business entity which at any time, whether by purchase, merger or
otherwise, directly or indirectly acquires ownership of Western Digital or to which Western
Digital assigns this Separation Agreement by operation of law or otherwise.
B. Waiver. No waiver of any breach of any term or provision of this Separation
Agreement shall be construed to be, nor shall be, a waiver of any other breach of this
Separation Agreement. No waiver shall be binding unless in writing and signed by the party
waiving the breach.
C. Modification. This Separation Agreement may not be amended or modified other
than by a written agreement executed by Xxxxxxxx and the Chief Executive Officer of Western
Digital.
D. Complete Agreement. This Separation Agreement (including the attached
exhibits and other agreements referenced in this Separation Agreement) constitutes and
contains the entire agreement and final understanding concerning Xxxxxxxx’x relationship with
Western Digital and the other subject matters addressed herein between the parties, and
supersedes and replaces all prior negotiations and all agreements proposed or otherwise,
whether written or oral, concerning the subject matters hereof. Any representation, promise
or agreement not specifically included in this Separation Agreement shall not be binding upon
or enforceable against either party. This Separation Agreement constitutes an integrated
agreement.
E. Indemnification. During the Transition Period and after the Separation Date,
Xxxxxxxx’x rights and obligations with respect to indemnification shall continue to be
governed by that certain Indemnity Agreement entered into as of January 29, 2004 by and
between WDC and Xxxxxxxx and that certain Indemnity Agreement entered into as of January 29,
2004 by and between Western Digital Technologies, Inc. and Xxxxxxxx. Xxxxxxxx’x rights to
indemnification afforded by California Labor Code Section 2802, California Corporations Code
Section 317 or any similar state or federal statute based upon services performed by Xxxxxxxx
for Western Digital shall also continue to apply during the Transition Period and after the
Separation Date.
F. Litigation and Investigation Assistance. Xxxxxxxx agrees to cooperate in the
defense of Western Digital against any threatened or pending litigation or in any investigation or
proceeding by any governmental agency or body that relates to any events or
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actions which occurred during or prior to the term of Xxxxxxxx’x employment with Western
Digital. Furthermore, Xxxxxxxx agrees to cooperate in the prosecution of any claims and lawsuits
brought by Western Digital that are currently outstanding or that may in the future be brought
relating to matters which occurred during or prior to the term of Xxxxxxxx’x employment with
Western Digital. During the Transition Period and after the Separation Date, except as requested
by Western Digital or as required by law, Xxxxxxxx shall not comment upon any (i) threatened or
pending claim or litigation (including investigations or arbitrations) involving Western Digital or
(ii) threatened or pending government investigation involving Western Digital. Western Digital
shall reimburse Xxxxxxxx for all reasonable out-of-pocket expenses incurred in providing assistance
pursuant to this provision. In addition, to the extent Xxxxxxxx provides assistance with respect
to a litigation or other adversarial proceeding to which Xxxxxxxx is not a named party, Western
Digital shall pay Xxxxxxxx a reasonable hourly fee to be determined by mutual agreement of the
parties for time spent providing such assistance, with the exception of time spent providing
testimony under oath. Xxxxxxxx shall not receive any hourly compensation for assistance provided
with respect to litigation or other adversarial proceeding to which Xxxxxxxx is a named party.
G. Severability. If any provision of this Separation Agreement or the
application thereof is held invalid, the invalidity shall not affect other provisions or
applications of this Separation Agreement which can be given effect without the invalid
provisions or applications and to this end the provisions of this Separation Agreement are
declared to be severable.
H. Choice of Law. This Separation Agreement shall be deemed to have been
executed and delivered within the State of California, and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with, and governed by, the
laws of the State of California without regard to principles of conflict of laws.
I. Cooperation in Drafting. Each party has cooperated in the drafting and
preparation of this Separation Agreement. Hence, in any construction to be made of this
Separation Agreement, the same shall not be construed against any party on the basis that the
party was the drafter.
J. Counterparts. This Separation Agreement may be executed in counterparts, and
each counterpart, when executed, shall have the efficacy of a signed original. Photographic
copies of such signed counterparts may be used in lieu of the originals for any purpose.
K. Advice of Counsel. In entering this Separation Agreement, the parties
represent that they have relied upon the advice of their attorneys, who are attorneys of
their own choice, and that the terms of this Separation Agreement have been completely read
and explained to them by their attorneys, and that those terms are fully understood and
voluntarily accepted by them.
L. Supplementary Documents. All parties agree to cooperate fully and to execute
any and all supplementary documents and to take all additional actions that
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may be necessary or appropriate to give full force to the basic terms and intent of this
Separation Agreement and which are not inconsistent with its terms.
M. Headings. The section headings contained in this Separation Agreement are
inserted for convenience only and shall not affect in any way the meaning or interpretation
of this Separation Agreement.
N. Taxes. Except for amounts withheld by Western Digital, Xxxxxxxx shall be
solely responsible for any taxes due as a result of any payments or benefits provided by
Western Digital pursuant to this Separation Agreement. Except for amounts withheld by
Western Digital, Xxxxxxxx will defend and indemnify Western Digital from and against any tax
liability that it may have with respect to any such payment and against any and all losses or
liabilities, including defense costs, arising out of Xxxxxxxx’x failure to pay any taxes due
with respect to any such payment or benefits.
I have read the foregoing Separation Agreement and I accept and agree to the provisions it
contains and hereby execute it voluntarily with full understanding of its consequences.
EXECUTED this 31st day of July 2007, at Orange County, California.
| “Xxxxxxxx” |
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| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
EXECUTED this 31st day of July 2007, at Orange County, California.
| “Western Digital” Western Digital Corporation, on behalf of itself and all WDC Subsidiaries |
||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| By: Xxxxxxx X. Xxxxxx | ||||
| Its: Senior Vice President, Administration, General Counsel and Secretary | ||||
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EXHIBIT A
GENERAL RELEASE
Release. In consideration of the severance benefits set forth in the foregoing
Separation, Transition, and General Release Agreement (the “Separation Agreement”), and other good
and valuable consideration, Xxxxxxx X. Xxxxxxxx (“Xxxxxxxx”) on behalf of himself, his descendants,
dependents, heirs, executors, administrators, assigns, and successors, and each of them, hereby
covenants not to xxx and fully releases and discharges Western Digital Corporation and each of its
parents, subsidiaries and affiliates, past and present, as well as its and their trustees,
directors, officers, members, managers, partners, agents, attorneys, insurers, employees,
stockholders, representatives, assigns, and successors, past and present, and each of them
(hereinafter together and collectively referred to as the “Releasees”), with respect to and from
any and all claims, wages, demands, rights, liens, agreements, contracts, covenants, actions,
suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments,
orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which he now owns or
holds or he has at any time heretofore owned or held or may in the future hold as against any of
said Releasees, arising out of or in any way connected with his service as an officer, employee or
manager of any Releasee, his separation from his position as an officer, employee and/or manager,
as applicable, of any Releasee, or any other transactions, occurrences, acts or omissions or any
loss, damage or injury whatever, known or unknown, suspected or unsuspected, resulting from any act
or omission by or on the part of said Releasees, or any of them, committed or omitted prior to the
date of this Release including, without limiting the generality of the foregoing, any claim under
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Family and Medical Leave Act of 1993, the California Fair
Employment and Housing Act, the California Family Rights Act, or any claim for severance pay,
bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical insurance or any
other fringe benefit, workers’ compensation or disability; provided, however, that such
release shall not apply to (i) any obligation created by or arising out of the Separation Agreement
for which receipt or satisfaction has not been acknowledged, and (ii) any claim for defense or
indemnity arising under (a) that certain Indemnity Agreement entered into as of January 29, 2004 by
and between Western Digital Corporation and Xxxxxxxx, (b) that certain Indemnity Agreement entered
into as of January 29, 2004 by and between Western Digital Technologies, Inc. and Xxxxxxxx, (c)
California Labor Code Section 2802, (d) California Corporations Code Section 317, (e) Western
Digital’s by-laws, or (f) any federal or state statute, law , regulation or provision that confers
upon Xxxxxxxx a right to defense or indemnification arising out of the services he performed for
Western Digital or any of the Releasees.
Waiver of Unknown Claims. It is a further condition of the consideration hereof and
is the intention of Xxxxxxxx in executing this instrument that the same shall be effective as a bar
as to each and every claim, demand and cause of action hereinabove specified and, in furtherance of
this intention, Xxxxxxxx hereby expressly waives any and all rights or benefits conferred by the
provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and expressly consents that this Release
shall be given full force and effect according to each and all of its express terms and conditions,
including those relating to unknown and unsuspected claims, demands and
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causes of actions, if any, as well as those relating to any other claims, demands and causes
of actions hereinabove specified. SECTION 1542 provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Xxxxxxxx acknowledges that he understands the significance and consequence of such release and such
specific waiver of SECTION 1542.
ADEA Waiver. Xxxxxxxx expressly acknowledges and agrees that by entering into this
Release, he is waiving any and all rights or claims that he may have arising under the Age
Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of
execution of this Release. Xxxxxxxx further expressly acknowledges and agrees that:
A. In return for this Release, he will receive consideration beyond that which he was already
entitled to receive before executing this Release;
B. He is hereby advised in writing to consult with an attorney before signing this Release;
C. He was given a copy of this Release on [___, 2007] and informed that he had
twenty-one (21) days within which to consider this Release; and
D. He was informed that he had seven (7) days following the date of execution of this Release
in which to revoke this Release.
Xxxxxxxx expressly acknowledges and agrees that this Release will become null and void and he
will not be entitled to any of the severance benefits set forth in the Separation Agreement if he
elects to revoke this Release during the revocation period set forth above.
No Transferred Claims. Xxxxxxxx warrants and represents that he has not heretofore
assigned or transferred to any person not a party to this Release any released matter or any part
or portion thereof and he shall defend, indemnify and hold Releasees, and each of them, harmless
from and against any claim (including the payment of attorneys’ fees and costs actually incurred
whether or not litigation is commenced) based on or in connection with or arising out of any such
assignment or transfer made, purported or claimed.
Dated: _____________________, 2007.
|
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| Xxxxxxx X. Xxxxxxxx |
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EXHIBIT B
Employee Invention and Confidentiality Agreement Executed By Xxxxxxx Xxxxxxxx
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